Ask PG: Has HN ever received a DMCA Takedown Notice?

https://news.ycombinator.com/item?id=5582844

by jcr • 13 years ago

128 49 13 years ago

news.ycombinator.com

I thought it was really weird to find the following submission marked [dead] and was curious if it was due to flagging or if it was due to you getting a DMCA notice?

https://news.ycombinator.com/item?id=5579615

[dead] CipherCloud DMCA notice to remove discussion of homomorphic encryption (stackexchange.com) 39 points by dfc 18 hours ago | flag | 16 comments

My bet is it got clobbered by flagging, but if I put on my tin foil hat, flagging until [dead] may have been caused by abusive flagging.

The more important question is whether or not HN has ever received any DMCA Takedown Notices?

You went through the trouble to put a "DMCA" link at the bottom of nearly every page:

https://news.ycombinator.com/dmca.html

In reading through the above, it doesn't say anything about publication of received DMCA notices? It would be great if you published DMCA notices on the ChillingEffects.org site:

http://www.chillingeffects.org/

EDIT: It seems the cause of the [dead] was a duplicate post:

https://news.ycombinator.com/item?id=5579538

But I'm still curious if HN has gotten any DMCA notices?

DigitalSea• 13 years ago

I was thinking about this just the other day. The whole CipherCloud situation got a bit out of hand, I think the company are doing themselves more harm than good as that discussion about their encryption was speculation and interpretation based on publicly available information they had on their site. I don't really see any links disappear from the site, a few changed titles here and there though. Would be great to know if anyone has, especially in regards to the CipherCloud fiasco.

t0• 13 years ago

How many DMCA cases are actually pursued? It seems like most DMCA requests are simply scare letters. You could almost ignore all of them and never run into any trouble.

kbar13• 13 years ago

if they are valid DMCA notices and you are under the jurisdiction of the US... pretty sure that's illegal.

late2part• 13 years ago

False.

The DMCA act is readable; read it.

Effectively, all it does is offer safe harbor for an ISP, with ISP loosely defined.

Congress attempts to offers a pseudo mediation framework to limit/remove liability from the ISP for the acts of its users.

If the ISP complies with the DMCA, the ISP is immune from liability for copyright infringement.

Here's the part the ignorant ignore:

If the target of a DMCA notice sends a COUNTER-NOTICE, the ISP will/must/should put their stuff , else the ISP can be liable for taking it down without case.

Read the DMCA, it's fairly short as these things go.

http://www.copyright.gov/legislation/dmca.pdf

Disclosure: I spent $80k on attorneys defending against a nuisance lawsuit and used the DMCA as a shield.

dangrossman3• 13 years ago

No, Title II of the DMCA does not create any obligations for anyone. It is not illegal to completely ignore these notices.

Under copyright law, distributing copies of someone's protected work without authorization is illegal. Many types of internet service providers, as part of fulfilling the service they offer, distribute copies of works on behalf of others. Web hosts serve files their customers have uploaded, video sites stream user uploads, discussion boards serve messages written by users, etc. Thus, an ISP may come to unknowingly distribute copyrighted works without authorization, and would be subject to lawsuits for doing so.

The DMCA offers a way for these ISPs to avoid being sued despite having indeed infringed someone's exclusive rights under copyright law. If they register an agent with the copyright office, and follow a procedure for disabling and re-enabling access to materials they distribute based on certain notices, they then cannot be sued for having hosted that specific material in the past.

The DMCA does not require that anyone register an agent and follow those procedures, it only offers a benefit if you choose to do so.

mark-r• 13 years ago

The reason DMCA takedowns work so well as scare letters is that you can get in real trouble for ignoring them. It's not worth the risk.

scoot• 13 years ago

Meanwhile abuse of DMCA for reasons other than legitimate copyright claims seems (subjectively) to be occurring with increasing frequency, and, with no obvious penalty for the organisations submitting false DMCA takedowns, so are likely to continue, to the detriment of the rest of the us.

I think the "real trouble" should work both ways.

dpe82• 13 years ago

Ignoring a properly formed and delivered DMCA takedown notice results in site owner losing safe harbor from contributory copyright infringement claims. So a site can chose to ignore them, but if they do they can then be sued for their users' actions.

shared4you• 13 years ago

Well, I think it was killed because there was another earlier submission already on HN frontpage with more upvotes:

https://news.ycombinator.com/item?id=5579538

rdl2• 13 years ago

Yeah, I'm pretty sure it was 2 submissions with /q/ vs /questions/ as the only difference. I wish there were a way to merge comments on the two posts.

jcr2• 13 years ago

Yep, it seems the lenient dupe detector is the culprit (and it also seems my tin foil hat is on a wee bit too tight).

Anyhow, I'm still curious if HN has gotten any DMCA notices?

dfc2• 13 years ago

I think I grabbed the link from share and rdl grabbed the url from the location bar. When I noticed the dupe I considered deleting the post but that did not seem like the right thing to do because its not my place to remove other peoples comments.

sjtgraham2• 13 years ago

It's pretty safe to assume that YC has received DMCA takedowns for stuff on HN given YC has defined a process for dealing with them (https://news.ycombinator.com/dmca.html). It's interesting because really what copyright infringing material can news.yc host other than something posted in a comment? news.yc is after all merely a list of links to external hosts controlled by unrelated 3rd parties.

Generally, if you have a question about what happened to something on HN you should email info@ycombinator.com and someone will reply to you. The terms are quite clear on that. IIRC people have been hell banned for complaining about HN/PG on HN instead of emailing them.

jcr2• 13 years ago

You mean well, but you're mistaken on one thing. Having a registered "Agent of Record" along with contact information and a policy is required to be eligible for "Safe Harbor" provisions. Pretty much any US-based site accepting user contributions must have them to avoid copyright infringement liability. YC/HN having all these requirements filled is entirely normal and expected, so it doesn't really tell us anything. --Heck, I'd be really worried if they didn't have all of the requirements filled.

As my EDIT shows, the [dead] was due to the submission being a unnecessary duplicate post. It turned out to be a bad example for the real question in the title.

Mentioning the [dead] post wasn't a complaint, instead, it was just an example that led to the question in the title of whether or not HN has received any DMCA takedown notices. The follow-on question of whether or not PG/YC would be willing to publish any received DMCA notices on ChillingEffects.org is also viable.

In spite of the poor example link I picked, they're still good questions to ask publicly and it seems a lot of people are curious about the answers. None the less, you are still correct about emailing info@ycombinator being the right way to handle questions about stuff that gets moderated/deleted/edited.

(BTW over the last half decade I've sent in more than enough private bug reports directly to pg with my phone number included so he could contact me. I probably have some minimal "good will" stored up and I sincerely doubt he'd hell-ban me or anyone for a poor choice of example links.)

sjtgraham2• 13 years ago

Thanks. I forgot to mention before, but very clearly IANAL! :)

icebraining• 13 years ago

Comments can be infringing - see "Scientologists force comment off Slashdot": http://slashdot.org/story/01/03/16/1256226/scientologists-fo...

ams6110• 13 years ago

You went through the trouble to put a "DMCA" link at the bottom of nearly every page

Sites do that so they are in compliance with "safe harbor" laws. It not required to have it on every page of course, but it's probably just a standard footer template so not really a lot of "trouble" to do.

brudgers4• 13 years ago

[IANPG]

Y-Combinator's policy requires all notification to be physically delivered - i.e. US Postal Service or UPS or another delivery service is acceptable. Email is not acceptable - and presumably fax is not either, since no number is listed.

This means:

1. It will take several days for most takedown requests to be acted upon, by which time material will probably have rolled off the front page.

2. There is significant documentation when an entity pursues takedown in less than good faith - and if it came via USPS there could be substantial penalties for any fraud.

3. It makes bulk takedowns more difficult because each notice is required to provide adequate documentation.

In other words, Y-Combinator places a meaningful burden on those claiming violation of copyright, and I suspect that this creates enough friction to eliminate many claims - making HN better, and letting YC staff do more important work.

Silhouette• 13 years ago

I'd still be interested to know the legal basis for that policy. I asked about this once before, because having read the actual text of the DMCA it doesn't seem like such a policy would be sufficient to achieve the safe harbour protection, but I'm not a lawyer and I don't think I ever saw an answer on the earlier discussion. If anyone at YC would be willing to share any information they can about their rationale, it might be of general interest to anyone running sites with user-created content, which surely applies to many people reading HN.

dangrossman3• 13 years ago

From the DMCA:

    DESIGNATED AGENT- The limitations on liability established in this
    subsection apply to a service provider only if the service provider 
    has designated an agent to receive notifications of claimed 
    infringement described in paragraph (3), by making available through 
    its service, including on its website in a location accessible to the 
    public, and by providing to the Copyright Office, substantially the 
    following information:

    the name, address, phone number, and electronic mail address of the agent

    ...

    To be effective under this subsection, a notification of claimed 
    infringement must be a written communication provided to the 
    designated agent of a service provider

This seems to suggest that an e-mail would be sufficient (it is a writing and it is provided to the agent).

At the same time, the actual form to designate an agent implies that the notification should be delivered by mail:

http://www.copyright.gov/onlinesp/agents/n/news_ycomb.pdf

That said, whether YC ignores a notice it gets by e-mail because it doesn't believe it was delivered properly, or because it simply chooses to ignore the notice, the result would seemingly be the same -- YC can be sued for copyright infringement.

If the motivation for complying (or appearing to comply) with the DMCA is to gain the liability protection, YC would want to be easy to contact and act on the notice no matter how they receive it.

If YC isn't actually worried about being sued, which seems reasonable for a site that hosts nothing but minimal discussion and external links, then urging potential notifiers to jump through hoops makes more sense. That minimizes the amount of notices they have to deal with, and their impact on the site.

mef• 13 years ago

Fax is listed as a delivery method and a number is given. https://news.ycombinator.com/dmca.html

nwh• 13 years ago

I've always been curious if this (mail only, no email) is valid under the DMCA.

DannyBee2• 13 years ago

It must be a "written communication", but the same subsection also requires an "electronic mail address" for the designated agent.

You may have a hard time arguing they meant to require an email address, but at the same time, stuff sent there would not be valid.

mherdeg• 13 years ago

Are we reading the same policy? I'm looking at https://news.ycombinator.com/dmca.html and I see a fax number of "Fax: 650.360.3189" and "please send a written notice (by fax or regular mail) to the Designated Agent at the address below".

The January 2013 copy of the policy on archive.org lists the same contact information.

brudgers4• 13 years ago

I missed it. Faxing still creates friction and significantly so for any attempt at bulk requests.

pyre• 13 years ago

Relevant: https://news.ycombinator.com/item?id=4872999

pg2• 13 years ago

No, we've never gotten a DMCA notice.

It's less trouble to put a link at the bottom of nearly every page than to think about what pages to put it on.

chris_wot3• 13 years ago

It's only a matter of time before you do get one. If you get a frivolous DMCA claim, will you make good on the bit where you say "Please note that you will be liable for damages (including costs and attorney’s fees) if you materially misrepresent that material is infringing your copyright(s)"?

pg2• 13 years ago

Our lawyer wrote that text. I've never read it.

wikiburner• 13 years ago

Hey PG, would you consider open sourcing your DMCA copy, kind of like Automattic's Privacy Policy and Terms of Service? I think there's definitely a need for an open source DMCA notice.

Ask PG: Has HN ever received a DMCA Takedown Notice?

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